Paper Trail Could Block Nominee for Justice Post : Civil rights: Critics are using C. Lani Guinier’s many writings on voting issues to portray her as an extremist.

C. Lani Guinier, President Clinton’s choice to head the Justice Department’s Civil Rights Division, is quickly becoming the Robert H. Bork of the left.

A voting-rights attorney who once battled to give blacks a chance to win elections in the South, she has spent the past four years as a University of Pennsylvania law professor writing about new strategies for ensuring political fairness and “empowerment” for minorities.

But like Bork, her many writings on touchy subjects have given her critics the words with which to brand her an extremist.

She is a “quota queen” who would bring “breathtakingly radical” views to the government, says Clint Bolick, a former Justice Department attorney and aide to the Ronald Reagan Administration’s civil rights chief, William Bradford Reynolds.

“She has a serious problem with American democracy,” he added. By his analysis, Guinier proposes to scrap the cherished principle of majority rule in favor of a “racial spoils system.”

Those charges have sent Democrats scurrying for cover and have put Guinier’s nomination in trouble just three weeks after it was announced. Conservatives like Bolick readily admit that they are following a script written by liberal activists in the 1980s.

On the day Reagan nominated Bork to fill a vacancy on the Supreme Court, liberals led by Sen. Edward M. Kennedy (D-Mass.) lambasted the one-time conservative law professor as anti-civil rights, anti-abortion, anti-privacy and anti-free speech. Bork never recovered from the assault, and his nomination was defeated in the Senate.

Now, Guinier, a Yale University classmate and longtime friend of the President and First Lady Hillary Rodham Clinton, could be headed for a similar fate.

Guinier has not responded to the attacks or agreed to interviews since her nomination. This week, however, Guinier’s friends and co-workers came to her defense, saying she is not the strident, contentious person being portrayed by the conservatives. And some legal scholars in the field of voting rights say her writings have been distorted.

“She has presented some novel, tentative ideas on the problem of redistricting, and she is being mischaracterized as a hard-edged advocate of quotas,” said Tulane Law School dean John Kramer.

“I’m not campaigning for her, but her work is entitled to a fair hearing,” said University of Michigan law professor Alex Aleinikoff. “The criticisms I’ve read don’t describe her work as I know it. She is not advocating racial gerrymandering. She opposes it.”

Indeed, in several long journal articles, Guinier questions the 1980s strategy of creating “safe districts” for minority candidates. As an alternative, she proposes new voting arrangements which could “encourage cross-racial alliances.”

Clearly, though, Guinier courts controversy by raising questions about the principle of majority rule in the halls of city councils and county boards.

Normally, she writes, we accept “the entitlement of a 51% majority to exercise 100% of the power” because majorities are fluid. The group in the minority this year may in the majority next year.

But what about, she asks, a Southern community with a “racially polarized” power structure that entirely ignores the wishes of the black minority? Even the election of one or two black city council members may not change that reality in the slightest.

If so, she writes, this presents a “third generation” problem for voting-rights advocates.

The “first generation” came in the 1960s. Until then, blacks in the South were barred from registering to vote. The Voting Rights Act of 1965 gave the Justice Department and private civil rights lawyers the power to strike down schemes that prevented blacks from voting.

The “second generation” issue was crystallized in a 1980 Supreme Court case from Mobile, Ala. The city was governed by three commissioners, each elected at large. Although blacks made up 35% of the population, no black person had ever been elected to office.

In a 6-3 decision in Mobile vs. Bolden, the high court ruled that the system did not violate the Voting Rights Act because the black plaintiffs could not prove it was set up with a discriminatory intent.

But after a long and heated debate, Congress overturned that decision in the Voting Rights Act of 1982. The new law said federal courts could intervene and devise a new system if an electoral system acted to prevent a racial or ethnic minority from electing a candidate of their choice.

That principle led to the redrawing of electoral boundaries nationwide and to the election of new minority representatives, including the first Latino supervisor in Los Angeles County.

While most civil rights activists have celebrated these changes, many others, including conservatives such as Bolick, have denounced the idea of carving up voting districts along racial and ethnic lines.

In her recent writings, Guinier says she agrees in part with the critics. The move to create “safe seats” for minority candidates has antagonized whites, ignored other minorities and worked to elect “token” black representatives with little power, she says.

She recites recent examples from Alabama and Mississippi, where white majorities on county boards changed the rules to strip power from newly elected black board members. Even though blacks succeeded in electing representatives in these communities, they still often have no “meaningful voice” in the distribution of political power, she says.

This sort of “majority tyranny” should now be challenged under the Voting Rights Act, she argues.

What might be done? Guinier suggests that counties with a history of “racially polarized” voting might consider “cumulative voting” as an alternative.

Take, for example, a city such as Mobile, with a 35% black population. Under the redistricting schemes that were used in the 1980s, the city could be divided into five districts where blacks could win one, or perhaps, two seats.

Guinier proposes instead all five commissioners be elected during one election in which all the voters would get five votes. They could cast all their votes for one candidate or spread them around to several.

This system, she argues, could protect the interests of a black minority but also encourage all politicians to seek the votes of all city residents. This could “encourage coalitions” of voters that bridge racial lines.

Or consider the example where a Southern city has a council with two black members and three white ones. If the council always voted along racial lines, the white majority could still control all of the power.

If this were demonstrated over several years, Guinier suggests that a voting-rights lawsuit could seek a change, such as imposing a “minority veto.” For example, the rules could be changed to require a two-thirds vote to approve the budget. She argues that this would foster “consensus” and force the majority to consider the wishes of the minority.

A Senate confirmation hearing has not been set yet, but her ideas about a “minority veto” will likely be attacked, ironically, by the chamber’s Republicans. Recently they relied on the fabled filibuster technique to block the Democratic majority from passing Clinton’s economic stimulus plan.

The Republicans may not use Guinier’s exact wording, but their approach sounds remarkably similar. As she states it, her notion “concedes the majority’s right to majority power. However, it challenges the majority’s right to all power.”

Carol Lani Guinier, 43, grew up in Queens, N.Y., in a prominent black family. Her father, Ewart Guinier, was an attorney, a history professor at Harvard University and a pioneer in African-American studies.

She graduated from Radcliffe College in 1971 and from the Yale Law School in 1974, in the same class with Supreme Court Justice Clarence Thomas. She had made friends there with Bill Clinton and Hillary Rodham of the Class of 1973, who later were guests at her wedding in 1986.

During the Jimmy Carter Administration, Guinier worked as a top assistant to Justice Department civil rights chief Drew Days, now Clinton’s nominee as U.S. solicitor general.

Under Days and Guinier, the Justice Department in the late 1970s was praised by some for its vigorous enforcement of the federal civil rights laws and derided by others for supporting race-conscious affirmative action.

When Reagan came to power, Guinier went to work for the NAACP Legal Defense Fund as a voting-rights lawyer.

Her legal writings, all of which focus on voting rights, are academic and abstract. “Conceptions” and “models” do battle, not real people. In recounting the competing ideologies of the civil rights movement, she describes some black leaders as “authentic” representatives of the black community, a controversial term that is sure to raise questions at her confirmation hearing.

Abigail Thernstrom, a voting-rights expert and longtime critic of Guinier, complains that her ideas are mired in an outdated view of America.

“She sees racism and racial voting everywhere. In city councils, legislatures. I don’t see that,” Thernstrom said.

Despite warnings that Guinier’s nomination would spark controversy, Clinton apparently was determined from the beginning to pick her to head the Justice Department’s Civil Rights Division.

“I nominated her because there had never been a full-time practicing civil rights lawyer with a career in civil rights law, heading the Civil Rights Division,” the President said.

The division’s 218 lawyers enforce the federal civil rights laws in employment, education and housing. Under Section 5 of the Voting Rights Act, they must approve any changes in voting procedures in 17 Southern states.

Thanks to a recent Supreme Court ruling, however, Guinier, even if confirmed, will not be permitted to seek changes in how city councils or county boards do their business.

Last year, lawyers for the George Bush Administration had joined black plaintiffs in arguing that Etowah County, Ala., had violated the Voting Rights Act by stripping powers from a newly elected black commissioner. But on a 6-3 vote in Presley vs. Etowah County, the justices said the law extends only to issues of voting and elections, not governance.

The House is considering a bill to reverse that decision, but Clinton made clear last week that Guinier will not have a free hand to make far-reaching changes in voting rights policy.

“I expect the policy to be made by the United States Congress,” Clinton said when asked about civil rights matters. “And I expect the Justice Department to carry out that policy.”

Profile: C. Lani Guinier

Background on President Clinton’s pick to head the Justice Department’s Civil Rights Division:

* Name: C. Lani Guinier (pronounced Gwa-NEER)

* Age: 43

* Hometown: Queens, N.Y.

* Education: Radcliffe College, 1971; Yale Law School, 1974.

* Career: University of Pennsylvania law professor, 1988 to present; voting rights lawyer for NAACP Legal Defense Fund, 1981-88; top assistant to civil rights chief in Justice Department, 1977-81.